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صرف 1000 روپے میں 10 وکلاء تک کی براہِ راست رابطہ تفصیلات حاصل کریں اور کال یا واٹس ایپ کے ذریعے موزوں قانونی ماہر سے رابطہ کر کے اپنا معاملہ پورے اعتماد کے ساتھ آگے بڑھائیں۔
Criminal Appeal No. 134 of 1981, decided on 3rd April, 1982.
---S. 302/34--Appreciation of evidence--Three eye-witnesses, related to deceased claiming to be eye-witnesses of occurrence--Questions- Eye-witnesses had not seen occurrence and were not in a position to identify culprits--Such witnesses, held, could not be relied upon without corroboration--No satisfactory corroboration coming forth--Ocular evidence disbelieved in circumstances.
Niaz v. The State P L D 1960 SC 387 ref.
---S. 302/34--Appreciation of evidence--Witness (father of deceased) allegedly dragged by accused--Nothing shown to prove that witness was so dragged--Fact of not receiving of any injury by witness from accused who had an equal motive against him making his presence at spot doubtful--Occurrence taking place at some distance from house of said witness, in a winter evening and as such said witness not found to be a natural witness--Reason given by witness for his presence at spot not found to be convincing--Medical evidence contradicting statement of witness--Such witness, was not present at spot at time of occurrence in circumstances.
---S. 302/34--Medical evidence--One of eye-witnesses (wife of deceased) stating that deceased had taken meals short while before occurrence- According to medical evidence; stomach of deceased was found to be empty--Ocular evidence having been contradicted by medical evidence, disbelieved.
---S. 302/34--Medical evidence--Eye-witnesses stated that two of accused were armed with hatchets and four accused were armed with blunt weapons and gave blows to deceased with their respective weapons- Medical evidence showing that deceased did not receive any sharp-edged injury--Witnesses could not explain such contradiction--Number of injuries received by deceased not commensurating with number of accused persons--Ocular evidence having been not found to be in conformity with medical evidence, disbelieved.
---S. 302/34--Ocular evidence--One of eye-witnesses (father of deceased) not found to be present at spot at time of occurrence--No occasion arising for reaching of other witnesses at spot on alarm raised by said eye-witness--Medical evidence contradicting ocular evidence--All eye-witnesses related to deceased--No independent witness produced from vicinity of place of occurrence--Evidence of wife and cousin of deceased found to be suffering from infirmities--Ocular evidence, disbelieved.
---S. 302/34--Ocular evidence not inspiring confidence and same having not been acted upon by trial Court to extent of two acquitted accused- Safe administration of justice, held, demanded exclusion of such ocular evidence or at least required independent corroboration as against each accused--Corroboration not forthcoming--Accused acquitted in circumstances.
---S. 302/34--Recovery--No independent witness produced to support recovery--Cousin of deceased eye-witness as well as recovery witness-- Serious discrepancies found in evidence of recovery witness and that of Investigating Officer-- Recovery disbelieved.
---S. 302--Ocular evidence not inspiring confidence and same having not been believed qua acquitted co-accused--Evidence of recovery disbelieved--Acquitted co-accused who had motive and who had not only brought accused with them but actively participated in occurrence acquitted by Trial Court and their acquittal not challenged by State or complainant--Case being of unsafe conviction accused was entitled to benefit of doubt--Accused acquitted in circumstances.
Khalid Farooq Qureshi and Malik Muhammad Rafiq for Appellants.
Muhammad Zawwar Shah for the State.
Date of hearing: 3rd April, 1982.
This criminal appeal arises from the judgment of the learned Additional Sessions Judge, Multan, whereby he on 7-7-1983, while acquitting the co-accused Chiragh and Shera of the charge convicted Falaksher son of Muhammad Fazil aged 25 years, Nazar Hussain aged 30 years, Falaksher son of Mathela aged 30 years and Manzoor aged 25 years, appellants under section 302/34, P.P.C. and sentenced them to imprisonment for life and a fine of Rs.3,000 each, in default thereof to further R.I. for six months each. Under section 544-A, Cr.P.C. they were further ordered to pay a compensation of Rs.3,000 each, in default thereof to suffer further R.I. for six months each with the direction that the same if realized to be paid to the legal heirs of the deceased, for causing the death of Zahoor Hussain on 17-11-1979 at 7-30 p.m. in the area of Chak No. 14/8-R of Police Station, Tulamba.
2. Dr. Abdul Ghafoor P.W.1 conducted the post-mortem examination on the dead body of Zahoor Hussain on 19-11-1979 at 8 a.m. and found as many as four injuries on his head, ante-mortem and caused with blunt weapon. In his opinion cause of death was haemorrhage and shock as a result of skull fracture due to injuries Nos. 2 and 3 which were sufficient to cause death in the ordinary course of nature. The stomach was empty containing only gas.
3. The facts are set out at considerable length in the judgment of the trial Court and it is, therefore, not necessary for me to detail them at any length. Briefly on the morning of the eventful day, Mst. Zohran P.W.6, wife of the deceased went to the field of the acquitted co-accused namely, Shera and Chiragh to pick cotton, where she was abused and insulted by Shera and Chiragh on the pretext that she had not picked the cotton properly. On her return to the house she apprised Zahoor Hussain deceased her husband and Shahmand P.W.9, her father- in-law, of the incident. It so happened that at 5 p.m. the same day, said Chiragh passed on Tractor Trolly by Girls School which situates near the house of the deceased and he was reprimanded by the deceased and Shahmand P.W.9 for having insulted Mst. Zohran P.W.6. At this Chiragh got annoyed and declared that he would soon teach a lesson. After a short while Chiragh and Shera acquitted co-accused alongwith Manzoor Hussain appellants, all armed with Lathis, came to the house of the deceased and started abusing. They, however, when entreated by Pehlwan P.W.10 Pathan and Ashiq, went back saying that they would not spare the deceased alive.
At the fateful time Shahmand P.W.9 and his son Zahoor Hussain deceased, while on their way back to the house, reached in open place towards south of the Girls School, all of a sudden Shera and Chiragh armed with Lathis, Manzoor Hussain and Falaksher son of Mathela armed with hatchets, Nazar Hussain and Falaksher son of Fazil armed with Lathis appeared there. Manzoor Hussain, Falaksher son of Mathela Nazar Hussain and Falaksher son of Fazil gave hatchet and Lathi blows on the head of the deceased who fell down. Thereafter, all the accused went on giving blows to the deceased. The alarm raised by Shahmand P.W.9 attracted Mst. Zohran P.W.6 and Pehlwan P.W.10, paternal-uncle of the deceased, and Ashiq (not produced) to the spot. When these witnesses stepped forward to rescue the deceased, Chiragh and Sher threatened them with dire consequences. The appellants/ accused then fled away. Zahoor Hussain deceased succumbed to the injuries on the spot. Shahmand P.W.9 left for the police station where he lodged F.I.R. Exh.P.F. at 10 p.m. which was recorded by P.W.11 Khan Muhammad A.S.I.
4. The appellants were arrested on 19-11-1979, Falaksher son of Muhammad Fazil, Nazar Hussain, Falaksher son of Mathela and Manzoor Hussain, appellants got recovered blood-stained Lathis P-7 and P-6 and hatchets P-5 and P-4 vide memoranda Exhs.P.L., P.K., P.J. and P.H. respectively. Serologist report Exh. P.Q. shows that these weapons were stained with human blood.
5. The prosecution produced as many as 11 witnesses, out of whom P.W.7 Mst. Gullan has supported the incident which took place in the field of Shera and Chiragh where Mst. Zohran P.W.6 was insulted. P.W.6 Mst. Zohran, P.W.9 Shahmand, P.W.10 Pehlwan are the eye witnesses of the case. Mst. Zohran P.W.6 has also deposed about the first incident. All these witnesses have supported the prosecution case as stated above. Pehlwan P.W.10 and Khan Muhammad A.S.I. P.W.11 have supported the alleged recoveries from the appellants.
6. The learned counsel for the appellants has contended that the prosecution has failed to prove its case beyond reasonable doubt, the eye-witnesses are related; in fact, they had not seen the occurrence; they have been disbelieved to the extent of Sher and Chiragh and that the recoveries are fake. On the other hand, the learned counsel for the State has supported the impugned judgment and submitted that the w4tnesses have not been disbelieved to the extent of two co-accused and that the trial Court was fully competent to sift the truth.
In the instant case three witnesses who are related to the deceased claiming to be the eye-witnesses of the occurrence, have charged the four appellants and two acquitted co-accused with the commission of the murder of Zahoor Hussain deceased. I propose to appreciate their evidence in the light of case-law reported as Niaz v. The State P L D 1960 ( ) 387. As laid down therein the first question to be considered is whether, in fact, they saw the occurrence and if there be no reason to doubt that they witnessed the occurrence and were in a position to identify the culprits, the further question arises as to whether they can be relied upon for convicting the accused without corroboration. After having considered the entire case in the light of the case-law cited above I am inclined to answer the first two questions in the negative and on the third question I am of the opinion that the ocular evidence needs corroboration on material counts against the appellants and no satisfactory corroboration has come forth. The reasons are, that Mst. Zohran P.W.6 has stated that just after having taken the meals, the deceased left for a shop situated at some distance in the same village to make purchases. The prosecution case is that the deceased was accompanied by Shahmand P.W.9 and it was the alarm raised by Shahmand P.W.9 which attracted the other witnesses to the spot I would, therefore, like to discuss the evidence of Shahamand P.W 3 first. He is the father of the deceased. According to the prosecution case, he, too had reprimanded Chiragh acquitted co-accused. He has stated that he had fallen on his son when he was lying on the ground and was dragged by Shera and Chiragh. He was not medically examined and as such there is nothing to show that, in fact, he was dragged. He is not injured. The accused had an equal motive to harm him. To me, the fact that he did not receive any injury during the occurrence is a reason to doubt that he was present there. Had he been present there, in the circumstances of the case, especially when he had interfered and thrown himself on the body of his son he would have not been spared by the appellants or at least he must have received scratches, abrasions or bruises. The occurrence took place at some distance from the house of P.W. 7 in winter days as such he cannot be termed as a natural witness. The reasons given by him for his presence at the spot at fateful time have to be scrutinized. In cross-examination he stated that he did not know the shop-keeper from whom he and the deceased had made purchases just before the occurrence. It is really strange that he does not know the name of the shop-keeper of his village whose shop is at some distance from the house. This circumstance, gives rise to a reason to doubt that he was accompanying his son after having made purchases from a shop. The shop-keeper was not produced during the investigation to prove that P.W.9 Shahmand was accompanying the deceased just before the occurrence. He was a material witness at least to prove the presence of this witness with the deceased. Mst. Zohran P.W.6 has stated that the deceased after having taken the meals in his house had left for the shop alongwith Shahmand P.W.9 to t make purchases whereas the doctor has stated that the stomach was empty. To my mind, this is an additional reason to doubt this part of the prosecution story. I further find that the statement of this witness is not confirmatory with the medical evidence. In the F.I.R. he stated that all the four appellants gave one blow each on the head of the deceased before he had fallen down and thereafter, all the six accused had inflicted injuries on the person of the deceased with their respective f weapons. At the trial, he stated that all the accused had inflicted blows with their respective weapon on the person of the deceased whereas, the medical evidence shows that the deceased did not receive any injury with the sharp-edged weapon and that the number of the injuries received by the deceased was four which does not commensurate with the number of the accused persons i.e. six.
For all these reasons I am of the opinion that Shahmand P.W.9 was not present at the spot at the time of the occurrence and as such there was no occasion for the other witnesses to reach the spot on the alarm raised by him.
7. Mst. Zohran P.W.6 is the wife of the deceased whereas, Pehlwan P.W.10 is the cousin of the deceased. It is an admitted fact that some person reside near the place of occurrence but no one from the vicinity has been produced. Mst. Zohran P.W.6 has also stated that all the six accused gave injuries to the deceased with their respective weapons and this allegation has been belied by the medical evidence which shows that the deceased did not suffer any sharp-edged injury. The witnesses have not explained this contradiction at all. They have not stated that these injuries were caused with the wrong side of the hatchet. The claim of Mst. Zohran P.W.6 that the injuries were inflicted in her view cannot be believed as the culprits might not have waited for Mst. Zohran P.W.6 and Pehlwan P.W.10 to come and witness the infliction of the injuries. It is also not believable that each of the accused have contented by giving one blow each, the four blows can very easily be inflicted by one or two persons. The evidence of Pehlwan also suffers from these in infirmities. The ocular evidence has failed to inspire confidence in my mind and the same has also not been acted upon by the trial Court to the extent of two acquitted co-accused. I feel that it would be in accordance with the safe administration of justice to exclude the evidence of these witnesses or at least require independent corroboration as against each appellant. I find that no independent witness has been produced to support the recoveries. Pehlwan P.W.10 is an eye-witness as well as the witness of the recoveries. There are serious discrepancies in. the evidence of his witness and statement of the Investigating Officer as to the manner in which each of the accused appellants had led to the recovery. Furthermore, according to the prosecution, the motive was with Shera and Chiragh who had not only brought the appellants with them but had also actively participated in the occurrence. According to the F.I.R., the evidence of P.W.6 Mst. Zohran and P.W.9 Shahmand is that these accused namely, Shera and Chiragh had actually injured the deceased with their Lathis. They, however, stand acquitted by the trial Court and their acquittal has not been challenged by the State or the complainant by way of revision or appeal. In this state of affair I am afraid that it would be hightly unsafe to sustain the conviction of the appellants.
8. For what has been stated above I am of the opinion that it is a case of unsafe conviction and as such, the appellants are entitled to the benefit of doubt. The appeal is, therefore, accepted and the appellants are acquitted. They shall be released forthwith if not required in any other case.
H. A. K. /5477/L Appeal accepted.
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